Chamier and Muhammad Rafiq, JJ.
1. This appeal arises out of a suit upon a mortgage. The plaintiff was toe on of the mortgagee. Defendants l and 2 wore the nephew and grand nephew of the mortgagor. Defendants 4 and 5 were representatives of the Sate Maharaja, of Ajudhia, to whom part of the mortgaged property was transferred by the mortgagor after the mortgage. Defendants 6, 7, 8 and 10 were impleaded as trustees of part of the property under a deed of endowment executed by the Maharaja.
2. Defendant 1 pleaded that there was no legal necessity for the mortgage, and the same plea, among many others, was put forward by defendants 6 and 10.
3. The Subordinate Judge decreed the claim, holding that legal necessity for the mortgage had been proved.
4. Defendants 5 and 10 appealed separately to the District Judge, who allowed both appeals, holding that legal necessity for the mortgage had not been established. The learned Judge dismissed, the suit with costs so far as it related to the property in possession of the appellants before him. Defendant 1, who was a respondent in the court of the District Judge, contended that the suit should be dismissed altogether, but the District Judge expressly declined to do this.
4. Defendant 1 has appealed to this Court. As he did not appeal to the lower appellate court it is doubtful whether ho has any right of appeal to this Court. We will assume, however, that he is entitled to appeal. It is urged, on his behalf, that inasmuch as the decree of the court of first instance proceeded on a ground common to all the defendants, i.e., that the mortgage was made for legal necessity, the District Judge on holding that legal necessity had not been made out was bound to reverse the decree in favour of all the defendants. Order XLI, Rule 4, provides that the appellate court in such a case may reverse or vary the decree in favour of all the defendants. The use of the word may shows in our opinion that the appellate court in given a discretion in the matter. It may be that a wholly unreasonable and indefeasible exercise of this discretion might be a good ground for a second appeal. But we need not decide that, for the District Judge has considered the question and has given his reason for refusing to reverse the decree in favour of all the defendants and we are unable to say that his decision is unreasonable. We must, therefore, decline to interfere. The view which we have taken seems to be supported by the remarks of the Madras High Court in Seshadri v. Krishnan (1) (1884) I. L. R. 8 Mad. 192. The appeal is dismissed with costs.